TMI Blog2010 (8) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944 read with the provisions of Rule 96ZP of the Central Excise Act, 1944. 2. As per the parameters declared by the said assessee, the Commissioner had fixed the Annual Production Capacity (APC) at 3345 MT for the year 1997-98 which was communicated vide letter F. No. IV/16-51/Ad hoc/97-98 dated 26-3-1998. Accordingly, the pro rata production capacity for the period from September 97 to March 98 was determined at 1951.25 MTs and the said assessee were required to pay central excise duty of ₹ 5,85,375/- for the said period. However, the said assessee had paid central excise duty of ₹ 3,34,540/- during the said period which resulted in short payment of ₹ 2,50,835/-. Similarly, for the years 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, vide their letter dated 16-11-1999, had requested the Commissioner to re-determine the APC fixed by the Commissioner and communicated vide letter F. No. IV/16-51/Ad hoc/98, dated 2-7-1999 in terms of the CEGAT s decision in the case of M/s. Awadh Alloys P. Ltd. v. C.C.E., Meerut reported at 1999 (112) E.L.T. 719 (T). The said request was rejected and the same was communicated to the said assessee vide letter F. No. IV/16-26/MP/97-T-2 dated 13-1-2000. Against the said letter the said assessee had filed an appeal before the CEGAT. The Tribunal, vide Order No. C-I/3311-24/WZB/2000 dated 22-9-2000, had set aside the said order and held that : The question is not res integra. The Tribunal in the case of M/s. Awadh Alloys P. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-3-1999 it was observed that the APC was required to be re-determined on the basis of parameters declared by the said assessee and as existed during the year 1998-99 and not on the basis of actual production of 1996-97. Accordingly the APC was re-fixed at 1030 MT and the duty liability thereon at ₹ 1,54,500/-. Further it was observed that in view of the fact that the said assessee had already paid the entire amount of duty as per APC fixed earlier including the duty demanded in the SCN and in view of the fact that APC fixed by the Commissioner on basis of the actual production of 1996-97 had become redundant, duty demanded in the notice did not merit any recovery. 6(e) Regarding SCN dated 31-5-2000 it was observed that the said as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is whether Commissioner made a mistake in revising the APC for the year 1998-99 and whether it can be said that the APC for the year 1998-99 had attained finality. 9. Heard both the sides. Shri R.S. Srova, learned J.D.R., appearing for the Revenue submits that the APC fixed by the Commissioner for the year 1998-99 had attained finality in view of the fact that the same was not challenged. He relies on the decision of CCE, Kanpur v. Flock (India) Pvt. Ltd. reported in 2000 (120) E.L.T. 285 (S.C.). He also relies on other decisions which were cited in the grounds of appeal filed by the Revenue. 10. We have considered the submissions made by both the sides. In this case, the respondent had applied for change in parameters vide their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or to pass an order. The very meaning of payment under protest is that the decision has not been accepted. If APC had attained finality because the appellant had paid the duty and did not file an appeal the Department s contention would have been proper. In this case first of all communication of APC fixed is only by way of letter and therefore once duty is paid under protest, an order vacating the protest confirming the APC fixed was required to be passed. It has not been shown that APC fixed was by way of a adjudication order but not a communication of a decision. Under these circumstances we cannot find fault with the Commissioner for having decided to fix the APC for the year 1998-99 once again. The learned advocate on behalf of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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